Loving v. Clem

• Decision Date: 28 June 1930
• Docket Number: No. 10802.,10802.
• Parties: LOVING et al. v. CLEM et al.
• Court: Texas Court of Appeals

30 S.W.2d 590

LOVING et al. v. CLEM et al.

No. 10802.

Court of Civil Appeals of Texas. Dallas.

June 28, 1930.

Rehearing Denied July 26, 1930.

Appeal from District Court, Dallas County; Walter L. Wray, Judge.

Suit by J. G. Loving and others against R. H. Clem and others. From an order refusing a temporary writ of injunction, plaintiffs appeal.

Affirmed.

Thompson, Knight, Baker & Harris and Jno. C. Read, all of Dallas, for appellants.

E. G. Hunter and Hamilton & Hamilton, all of Dallas, for appellees.

JONES, C. J.

From an order of a district court of Dallas county refusing a temporary writ of injunction to restrain appellees, R. H. Clem, W. L. Wiggins, and W. L. Randolph, from erecting two brick veneer apartment houses on lot 20 and 65 feet off of the entire northeast side of lot 19 in block 5 of Munger Place Heights addition to the city of Dallas, appellants J. G. Loving and Herbert Stellmacher, who instituted the suit, and Mrs. R. W. Eaton, who intervened as a plaintiff, have duly perfected an appeal to this court. The following is a sufficient statement of the facts for an understanding of the issues involved:

Munger Place Heights is a residential addition to the city of Dallas, platted into blocks, streets, and alleys, and duly dedicated by deed to such purpose. Gaston avenue is a principal street through such addition, and will be considered as running East and West, though its real direction is at an almost 45-degree angle. Skillman street extends north and south, and is the western boundary of this addition, the eastern boundary is Linden avenue, and Junius street is the southern boundary. Ridgeway, Russell, Lipscomb, Nesbitt, and Paulus streets extend north and south through a part of this addition, between Skillman street and Linden avenue, but terminate at the south line of Gaston avenue. Block 3 of the addition is on the north side of Gaston avenue, and is composed of the lots between Skillman street and Linden avenue, fronting on the north side of Gaston avenue. Block 4 is on the south side of Gaston avenue, between Lipscomb and Nesbitt streets, with a frontage of 300 feet on Gaston avenue, and extends back to Junius street; there being an alley running east and west in the rear of those lots fronting on Gaston Avenue. South of the alley the lots in this block front either east on Nesbitt or West on Lipscomb. Block 5 is between Paulus and Nesbitt streets, and has a frontage of 300 feet on Gaston avenue and 300 feet on Junius; the lots that front on Gaston avenue extend back to the alley and the lots south of the alley front, respectively, west on Nesbitt and east on Paulus. Block 6 lies to the east of Paulus with lots fronting on Gaston avenue and south of the alley on Paulus street. The lots owned by the parties to this suit are located in block 5 of said addition, except the lot of Mrs. R. W. Eaton, which is located in block 3, its front line being the north side of Gaston avenue and is directly opposite appellees' lots in block 5. Stellmacher's lot fronts on Nesbitt street, and is immediately in the rear of lots 17 and 18 of block 5. The north boundary line of lots 17, 18, 19, and 20 in block 5 is the south line of Gaston avenue. Loving's lot fronts on Paulus street, and is immediately in the rear of lots 19 and 20 in block 5. The land of appellees, on which the apartment houses are attempted to be erected, consists of lot 20 and the adjoining 65 feet off of lot 19 in block 5. These lots front on Gaston avenue, extend back to said alley, and are immediately north of the Loving lot; lot 20 being bounded on the east by Paulus street. Appellants and appellees hold their respective properties by deeds of conveyance from the Dallas Trust & Savings Bank, trustee, which is the common grantor of all of the properties in the addition of Munger Place Heights.

Certain restrictive covenants were placed in all deeds from the common grantor to purchasers of lots in this addition. These restrictions vary according to the location of the lots, in respect to the minimum cost of the houses to be built, in respect to the location of outhouses and other structures allowed to be constructed on a lot, and perhaps in some other minor respects, but every deed restricts the main structure to that of a family residence, to be used by a single family. These restrictive covenants recite that they run with the land, and they manifest a clear intention of the grantor to make the addition of Munger Place Heights a restricted residential district. In each deed there is placed a clause, as a part of the covenants, giving to the purchasers of lots the right to amend any of the restrictions under specified conditions.

In the deeds to appellees, and in the deeds to all other owners of lots in block 5, which front on the south side of Gaston avenue, the clause giving the right to amend reads: "It is fully understood and agreed that at any time any of the above conditions, so far as they affect the property on Gaston Avenue between Paulus and Nesbitt streets, may be amended by a vote of three-fourths of the owners on said street voting according to front foot holdings, each front foot counting as one vote."

As stated, the restrictive covenants in the deeds to appellees deny to them the right to construct the contemplated buildings, unless they secure such right by way of amendment to these covenants, adopted in conformity to the provisions of the above-quoted clause of their deeds.

Before appellees undertook to construct the apartment buildings in question, they secured an amendment to these restrictive covenants, which authorizes them to erect such buildings. This amendment was submitted only to the owners of lots in said block 5, fronting on Gaston avenue and located between Nesbitt and Paulus streets, and adopted by a vote of three-fourths of the front footage of the owners of such lots. The owners of lots in block 3 on the north side of Gaston avenue were not consulted as to the adoption of this amendment; nor were the owners of lots fronting on Gaston avenue in blocks 4 and 6 consulted in reference thereto. The owners of lots in block 5, fronting on either Nesbitt or Paulus streets, were not consulted.

Appellants contend that the amendment in question is void, because not adopted in the manner provided for in said clause. This contention is based on the theory that the amending clause in appellees' deeds requires (1) a vote by all of the owners of lots fronting on either side of Gaston avenue in Munger Place Heights addition, and is not restricted to the owners of the lots on the south side of Gaston avenue, located between Nesbitt and Paulus streets; (2) or that such clause requires the amendment to be voted, not only by the owners of lots on the south side of Gaston avenue, between Nesbitt and Paulus streets, but also by the owners of those lots fronting on the north side of Gaston avenue and immediately opposite the lots on the south side; (3) that, independent of the question of the amendment, the construction of these apartment houses is forbidden by the late zoning ordinance.

The right to amend the restrictive covenants is a vested contract right in appellees and cannot be impaired by the subsequent enactment of zoning ordinances. The issues of this case therefore depend entirely upon the construction to be given the amending clause in appellees' deeds. Under the broad construction given such a clause in deeds containing restrictive covenants, if the provisions of the clause are conformed to in voting a proposed amendment, the portion of this addition affected by such amendment may be entirely changed in its status as a restricted residential district. Couch v. Southern Methodist University (Tex. Com. App.) 10 S.W.(2d) 973. Under this authority the effect of the amendment, in respect to whether it changes the status of the property in this addition from a restricted to a nonrestricted district, cannot be considered. It must be borne in mind that an amending clause is placed in each deed to lots in this addition. It necessarily follows that, while the common grantor initiated a general plan or scheme of development, which manifested an intention to create a highly restricted residential district, still the power to change the status of property in this respect in this addition is given in some form to all purchasers of lots in the addition. The purchaser of a lot in this addition, therefore, has no guaranty that his section of the addition will remain a restricted residential district.

The amending clause under consideration declares that, "at any time any of the above conditions, so far as they affect the property on Gaston Avenue between Paulus and Nesbitt streets, may be amended by a vote," etc. The right to amend the restrictions given in this clause rests only in the owners of those lots between Paulus and Nesbitt streets, fronting on Gaston avenue. Owners of lots located elsewhere in this addition are given no right by this clause to amend the restrictions. This clause deals only with those who own lots fronting on Gaston avenue and lying between Paulus and Nesbitt streets. It gives no right to those owners of lots on the north side of Gaston avenue, though their lots be situated directly opposite from the lots which are given such right, for Nesbitt and Paulus streets do not cross Gaston avenue, and hence their lots are not between such streets. This clause gives no right to amend to those owners of lots fronting on the south side of Gaston avenue and located between Nesbitt and Lipscomb streets.

Is the right to vote on an amendment to the restrictions in appellees' deeds, and in the other deeds to lots fronting on Gaston avenue and lying between Paulus and Nesbitt streets, given to those who have no right to amend the restrictions in their deeds under the terms of this clause? We do not think so. The clause declares the right to vote is given to the "owners of lots on said street," and it is...